RILEY, J.
Appellant-Plaintiff, League of Women Voters of Indiana, Inc. and League of Women Voters of Indianapolis, Inc. (collectively the League), appeal the trial court’s dismissal of their Amended Complaint for Declaratory Judgment seeking a judicial declaration that Indiana’s Voter I.D. Law violates the Indiana Constitution.
We reverse and remand with instructions.
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In 2005, the Indiana General Assembly passed a law requiring “citizens voting in person on election day or casting a ballot in person at the office of the circuit court clerk prior to election day to present photo identification issued by the government.” Crawford v. Marion County Election Bd., 128 S. Ct. 1610, 1613 (2008). The Voter I.D. Law applies to voting in both primary and general elections. Ind. Code §§ 3-10-1-7.2 and 3-11-8-25.1. It does not apply, however, to voters casting absentee ballots by mail or those who happen to reside at a state licensed care facility where a precinct polling place is located. I.C. §§ 3-10-1-7.2(e), 3-11-8-25.1(e), and 3-11-10-1.2.
To be an acceptable identification card, it must have been issued by the State of Indiana or the United States of America and must contain an expiration date which has not expired as of the time when the voter casts her ballot, or if it has, it did so after the most recent general election. I.C. § 3-5-2-40.5. The Voter ID Law additionally made free identification cards available to individuals who do not have a valid Indiana driver’s license and who will be at least eighteen at the next election. I.C. § 9-24-16-10.
If a voter fails to present acceptable proof of identification, the voter can cast a provisional ballot and execute a challenged voter affidavit. I.C. §§ 3-11-8-25.1 and 3-10-1-7.2. If the voter wishes her provisional ballot to be counted she must appear before the circuit court clerk or the county election board before noon ten days following the election. I.C. §§ 3-11.7-5-1 and 3-11.7-5-2.5. Upon appearing, the voter can either (1) provide proof of identification and execute an affidavit that she was the person who cast the provisional ballot on election day; or (2) file an affidavit attesting to her religious objection to being photographed or averring that she is indigent and cannot obtain proof of identification without payment of a fee. I.C. § 3-11.7-5-2.5. Once a voter has taken one of these two steps, the county election board shall count the voter’s ballot as long as no other challenge to the provisional ballot exists. Id.
On July 29, 2008, the League filed an amended complaint seeking a declaration that the Voter ID Law violates Article 2, Section 2 and Article 1, Section 23 of the Indiana Constitution. Specifically, the League contended in Count I that the Voter ID Law imposed a “new substantive qualification on the right to vote, not authorized by the Indiana Constitution.” (Appellant’s App. p. 6). The League acknowledged that, pursuant to 140 Indiana Administrative Code §7-4-3, Indiana offers free identification to qualified voters who are able to establish their residence and identity by way of an original or certified copy of their birth certificate, certificate of naturalization, United States veterans photo identification, United States military photo identification, or a United States passport. However, the League alleged that “Indiana counties charge between $3 to $12 for a birth certificate, and in some other States the cost is much higher. The total fees for a U.S. passport are approximately $100.” (Appellant’s App. p. 4).
Further, the League alleged that in Marion County alone in the 2007 municipal election, 32 persons who submitted provisional ballots never produced a qualified form of identification and therefore their votes were not counted, despite the fact that “[m]ost of those voters had voted for several years at the same location.” (Appellant’s App. p. 6). Additionally, the League alleged that in St. Joseph County, 12 nuns were not permitted “to cast a regular or provisional ballot” because they did not have the required form of identification. (Appellant’s App. p. 6). In Count II, the League contended that the Voter I.D. Law conferred a privilege upon voters voting by mail-in absentee ballot because those voters did not have to comply with the identification requirements.
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The League contends that three aspects of the Voter I.D. Law violates Section 23: (1) the disparate treatment between mail-in absentee voters and in-person voters; (2) the disparate treatment between voters who reside at state licensed care facilities that by happenstance are polling places and elderly and disabled voters who do not reside at state licensed care facilities that also happen to be polling places; and (3) the requirements that an identification contain an expiration date and photograph is not reasonably related to the purpose of the statute.
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. . . The crux of the League’s contention is that mail-in voters are not required by law to execute an affidavit regarding their identity, but in-person voters are required to produce a government issued photo identification card which contains an expiration date. The League directs our attention to our supreme court’s decision in Horseman v. Keller, 841 N.E.2d 164 (Ind. 2006). In Horseman, the trial court declared Indiana Code section 3-12-1-13 unconstitutional because it did not allow mailed-in absentee ballots lacking two sets of clerks’ initials to be counted in a recount although ballots cast in-person, but lacking two sets of clerks’ initials, could be counted in the recount. Our supreme court declared to the contrary that the statute was constitutional, because inherent differences make mailed-in ballots more susceptible to improper influences or fraud, and, therefore, “it is reasonable that the legislature believed it in the interest of Indiana voters to more stringently govern absentee balloting.” Id. at 173.10 Because of this conclusion, the League contends that it is irrational for our legislature to require identification of in-person voters but not require an affidavit affirming the identity of mail-in voters. We agree.
If it is reasonable to “more stringently govern absentee balloting,” then it follows that a statute that imposes a less stringent requirement for absentee voters than for those voting in person would not be reasonable. This is what the Voter I.D. law does.
Indiana Code sections 3-10-1-7.2 and 3-11-8-25.1 provide that “[a] voter who votes in person at a precinct polling place that is located at a state licensed care facility where the voter resides is not required to provide proof of identification before voting in” a primary election or in an election. The League contends that this preferential treatment violates both prongs of Section 23 analysis.
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. . . [W]e conclude that the class created by Indiana Code sections 3-10-1-7.2 and 3-11-8-25.1 is based in part upon an arbitrary or unnatural characteristic which grants an unequal privilege or immunity to residents of state licensed care facilities which also happen to be polling places and fails to treat persons similarly situated uniformly. The nature of state licensed care facilities and the inherent natural characteristics of the residents who reside in them may make them subject to certain directed legislation, but the Voter I.D.’s grant of immunity from the identification requirement for in-person voters is not appropriately related to those characteristics. Moreover, the privilege or immunity granted those persons in the class is unnecessary when it is acknowledged that those residing at state licensed care facilities already have an opportunity to vote absentee without showing identification. Therefore, we conclude that Indiana Code sections 3-10-1-7.2 and 3-11-8-25.1 violate the Equal Privileges and Immunities Clause.
The League also contends that the Voter I.D. Law’s requirement that government issued identifications contain a photograph and expiration date create a class of unequally treated persons not supported by inherent characteristics. . . .
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[W]e fail to see how the Voter I.D. Law’s requirement of a photograph and expiration date creates a class of voters. The requirement is general and applies to all voters who wish to vote in-person. Moreover, the League’s contention that the statute is being applied unequally by permitting Purdue University students and those with military identifications to vote despite a lack of specific expiration date is not properly brought in this facial attack of the Voter I.D. Law.
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Based on the foregoing, we conclude that the Voter I.D. law violates Indiana Constitution Article 1, Section 23, and must be declared void because it regulates voters in a manner that is not uniform and impartial.
Reversed and remanded.
KIRSCH, J., and MATHIAS, J., concur.